Smith trial magistrate’s remarks on ministers: OUT OF ORDER

Wednesday, May 15, 2019

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

IT was “wholly inappropriate” for Chief Magistrate Joyann Ferguson-Pratt to have not only criticised two Cabinet ministers for their involvement in former PLP Senator Frank Smith’s now-disposed of criminal matter, but also connect it to her decision to acquit him of all charges, the country’s lead prosecutor asserted yesterday.

Director of Public Prosecutions Garvin Gaskin asserted that the chief magistrate was out of line for scolding both Health Minister Dr Duane Sands and National Security Minister Marvin Dames, and asserted that saying it after she delivered her ruling did not “cure” the fact that it ought not to have happened.

Chief Magistrate Joyann Ferguson-Pratt.

Though he did not say outright that the chief magistrate demonstrated bias by making those remarks, in response to a question by appellate Justice Roy Jones, Mr Gaskin said the average observer could very well draw those types of inferences from her statements in the circumstances. “Some things are better left unsaid,” the DPP stated.

Mr Gaskin further charged that the chief magistrate made numerous errors in arriving at her conclusion that a case had not been sufficiently made out against Smith to compel him to answer to the allegations.

He asserted that the chief magistrate conducted the no-case submission stage of the proceedings as if it were the end of the trial. Mr Gaskin said she did this by making numerous “findings” about the evidence or the witnesses that proffered it, which he claimed were the result of her analysing the evidence to determine whether the Crown’s case had been proven beyond a reasonable doubt, instead of correctly analysing the evidence with a view to determining whether a sufficient enough case had been made out.

And in doing so, Mr Gaskin said she essentially “short-circuited” the required approach to a no-case submission, as there is no such test in law that would require the chief magistrate, during the no-case submission stage, or “half-time”, to accept or reject in full, or accept and reject in part, the evidence led by the Crown.

In response, however, Mr Smith’s lead defence attorney Keith Knight, QC, asserted that the chief magistrate not only had a duty to assess the evidence, but was well within her rights to assess the credibility of the Crown’s witness in accordance with the “fused jurisdiction” afforded to her by way of her role as magistrate.

Mr Knight explained that a magistrate is both judge of the facts and the judge of the law, giving him or her “supremacy” on both issues, as opposed to a judge adjudicating an indictable offence, who would only be judge of the law while the jury would act as the judges of the facts.

Thus, the senior Jamaican attorney asserted that when a no-case submission is made to a magistrate, and that magistrate makes a determination on those submissions, he or she is expected to set out, in a reasonably comprehensive way, the basis on which his or her conclusion was arrived at. By contrast, he said, a judge hearing an indictable matter need only say: “Case to answer” to the accused because of the supremacy of the jury as triers of the facts.

Thus, he said, the chief magistrate had a duty to assess the evidence and was well within her rights to assess the credibility of the various witnesses, especially that of the Crown’s main witness, Barbara Hanna.

He further asserted that all the chief magistrate did was end what would otherwise be a “farce”, adding that continuing with the trial would have been an exercise in futility if the chief magistrate had, on assessing the evidence at the no-case submission stage, knew she was bound to acquit Smith at the end of the trial.

In February, Chief Magistrate Ferguson-Pratt acquitted and discharged Mr Smith of all 15 criminal charges after finding fault with numerous “inconsistencies” and “discrepancies” in the Crown’s case, which she further said was “undermined” by its own witnesses.

In particular, the chief magistrate said there were “inherent inconsistencies” throughout the evidence of the virtual complainant in the matter, Mrs Hanna, and that her claims were “manifestly unreliable” and ran contrary to “reason and all common sense”.

Chief Magistrate Ferguson-Pratt also criticised both Dr Sands and Mr Dames for the “egregious” way in which they interacted with Mrs Hanna prior to a police investigation into her claims, charging that their conduct gave the appearance of a “political flavour to a curious bystander.”

The chief magistrate especially criticised how a “serving member of Parliament” and Cabinet minister, Dr Sands, “entertained” Mrs Hanna in the circumstances despite her contributing some $300 towards his political campaign in the lead up to the 2017 general election.

She further commented on how Dr Sands approved a $1.9m contract for Mrs Hanna’s business without the approval of the Public Hospitals Authority’s (PHA) board of directors, at a time he said he was fully aware that Mrs Hanna was a contributor to his most recent campaign.

And, she said she could not “overlook” the fact that Dr Sands admitted that Mrs Hanna told him about Mr Smith’s alleged acts of extortion sometime in November 2016, which he never reported to the police.

Instead, Dr Sands referred the matter to Mr Dames, who ultimately met with the woman at his Mt Moriah constituency office between late May/early June of 2017. However, the chief magistrate noted that even the Crown’s lead attorney said Mr Dames could have found a more discreet venue to meet Mrs Hanna over her concerns other than his constituency office.

She thus said the events that took place prior to the investigative phase of the matter involving both Cabinet ministers was “wholly inappropriate to state it mildly”.

“The conduct of the minister responsible for the police agreeing to meet the complainant instead of directing his colleague to refer the complaint to the commissioner of police is unorthodox to say the least,” Chief Magistrate Ferguson-Pratt said at the time. “I sit as a judicial officer. I call it as I see it. I have no interest one way or the other. I remind myself of an ancient legal maxim. ‘Justice must not only be done, it must be seen to be done’.”

And in any event, Chief Magistrate Ferguson-Pratt said both Dr Sands’ and Mr Dames’ evidence, much like those given by the other key Crown witnesses in the matter, did not advance the prosecution’s case, as they all gave evidence of what Mrs Hanna said to them that she either never said in evidence, nor gave to the police during her initial interview.

Al-Leecia Delancy and Kendra Kelly also appear for the Crown. Damian Gomez, QC, and Philip McKenzie are the other two attorneys on record for Mr Smith.